Secrecy Laws and Open Government in Australia REPORT REPORT 112 December 2009 This Report reflects the law as at 11 November 2009 © Commonwealth of Australia 2009 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further authorisation should be directed by letter to the Commonwealth Copyright Administration, Copyright Law Branch, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600 or electronically via www.ag.gov.au/cca. ISBN- 978-0-9807194-0-6 Commission Reference: ALRC Report 112 The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 25, 135 King Street, Sydney, NSW, 2000, Australia. All ALRC publications can be made available in a range of accessible formats for people with disabilities. If you require assistance, please contact the ALRC. Telephone: within Australia (02) 8238 6333 International +61 2 8238 6333 TTY: (02) 8238 6379 Facsimile: within Australia (02) 8238 6363 International +61 2 8238 6363 E-mail: [email protected] Homepage: www.alrc.gov.au Printed by Ligare The Hon Robert McClelland MP Attorney-General of Australia Parliament House Canberra ACT 2600 11 December 2009 Dear Attorney-General Review of Secrecy Laws On 5 August 2008, you issued terms of reference for the ALRC to undertake a comprehensive review of secrecy laws and related issues. Those terms of reference were amended by your letter of 26 October 2009, to extend the reporting date to 11 December 2009, in order to facilitate the consideration of all submissions and consultations. On behalf of the Members of the Commission involved in this Inquiry—including Justice Berna Collier and Justice Susan Kenny—and in accordance with the Australian Law Reform Commission Act 1996 (Cth), I am pleased to present you with the final report in this reference, Secrecy Laws and Open Government in Australia (ALRC 112). Yours sincerely Professor Rosalind Croucher Commissioner in charge Acting President Contents Contents Terms of Reference 5 List of Participants 7 List of Recommendations 9 Executive Summary 21 1. Introduction to the Inquiry 27 Background 27 Process of reform 31 Overview of this Report 33 Stop press—legislation recently introduced into Parliament 39 2. Secrecy in the Context of Open Government 41 Introduction 41 From secrecy to open government 42 Current trends in open government 46 Freedom of expression 50 Balancing secrecy, freedom of expression and open government 62 3. Overview of Current Secrecy Laws 65 Introduction 65 Duties of confidentiality and loyalty and fidelity 65 Specific statutory secrecy provisions 70 General criminal offences 86 4. Framework for Reform 99 Introduction 99 The need for statutory secrecy provisions 100 Criminal, civil or administrative provisions 104 A harm-based approach 119 5. General Secrecy Offence: Harm to Public Interests 143 Introduction 143 What should be included in the general secrecy offence? 145 What should not be included in the general secrecy offence? 161 6. General Secrecy Offence: Elements 183 Introduction 183 Whose conduct should be regulated? 184 What conduct should be regulated? 198 2 Secrecy Laws and Open Government in Australia What information should be protected? 204 Fault elements 206 Initial and subsequent disclosures 214 7. General Secrecy Offence: Exceptions and Penalties 227 Introduction 227 Exceptions and defences 228 Which exceptions and defences should be expressly included? 230 Which exceptions and defences should not be expressly included? 242 Public interest disclosure 253 Penalties 258 Other issues 264 8. The Role of Specific Secrecy Offences 273 Introduction 273 When are secrecy offences warranted? 273 Express requirement of harm 274 Protecting categories of information 279 ALRC’s views 306 9. Specific Secrecy Offences: Elements 309 Introduction 309 Whose conduct should be regulated? 310 What conduct should be regulated? 318 Fault elements 325 Subsequent disclosure offences 334 Penalties 343 10. Authorised Disclosure Provisions 353 Introduction 353 Authorised disclosure provisions 354 Interaction with the exceptions in the general secrecy offence 357 Exceptions in specific secrecy offences 361 Public interest disclosure 385 Override provisions 387 11. Specific Secrecy Offences: Review and Guidance 391 Introduction 391 Reviewing specific secrecy offences 391 Policy guidance and drafting directions 403 12. Administrative Obligations in the Australian Public Service 407 Introduction 407 Background 408 Prejudice to the effective working of government 412 Information communicated in confidence 425 Exceptions and defences 429 Penalties 432 Processes for dealing with breaches 436 Contents 3 13. Regulating Beyond the Australian Public Service 453 Introduction 453 Commonwealth employees outside the APS 454 Former Commonwealth employees 469 Persons outside Commonwealth employment 472 14. Frameworks for Effective Information Handling 491 Introduction 491 Commonwealth information-handling manuals 492 Agency-specific policies and guidelines 497 Lawful and reasonable employer directions 505 Memorandums of understanding 508 Information and communication technology systems 512 Data matching 516 15. A Culture of Effective Information Handling 523 Introduction 523 Individual Commonwealth employees 524 Australian Government agencies 536 16. Interactions with Other Laws 547 Introduction 547 Freedom of information 548 Archives 571 Privacy 579 Parliamentary privilege 593 Appendix 1. List of Submissions 599 Appendix 2. List of Agencies, Organisations and Individuals Consulted 605 Appendix 3. List of Abbreviations 607 Appendix 4. Table of Secrecy Provisions 613 Appendix 5. Extracts of Key Secrecy Provisions 631 Terms of Reference REVIEW OF SECRECY LAWS I, ROBERT McCLELLAND, Attorney-General of Australia, having regard to: • the desirability of having comprehensive, consistent and workable laws and practices in relation to the protection of Commonwealth information; • the increased need to share such information within and between governments and with the private sector; • the importance of balancing the need to protect Commonwealth information and the public interest in an open and accountable system of government; and • previous reports (including previous reports of the Commission) that have identified the need for reform in this area REFER to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, options for ensuring a consistent approach across government to the protection of Commonwealth information, balanced against the need to maintain an open and accountable government through providing appropriate access to information. 1. In carrying out its review, the Commission will consider: a. relevant laws and practices relating to the protection of Commonwealth information, including the scope and appropriateness of legislative provisions regarding secrecy and confidentiality; b. whether there is a need to consolidate and modernise relevant provisions currently in the Crimes Act 1914 and other Commonwealth legislation for inclusion in the Criminal Code; c. the way in which secrecy laws in the Crimes Act interact with other laws and practices, including those relating to secrecy, privacy, freedom of information, archiving, whistle-blowing, and data-matching; d. whether there should be different considerations for secrecy laws relating to the protection of national security and other sensitive Commonwealth information; and 6 Secrecy Laws and Open Government in Australia e. any related matter. 2. In carrying out its review, the Commission is to identify and consult with key stakeholders, including relevant Commonwealth, State and Territory agencies and private sector bodies. 3. The Commission will provide its final report to me by 31 October 2009. Dated 5 August 2008 Robert McClelland Attorney-General List of Participants Australian Law Reform Commission Division The Division of the ALRC constituted under the Australian Law Reform Commission Act 1996 (Cth) for the purposes of this Inquiry comprises the following: Professor David Weisbrot (President) (until 30 November 2009) Professor Les McCrimmon (Commissioner) (until 30 November 2009) Professor Rosalind Croucher (Commissioner in charge, and Acting President from 1 December 2009) Justice Berna Collier (part-time Commissioner) Justice Susan Kenny (part-time Commissioner) Senior Legal Officers Carolyn Adams Bruce Alston (until July 2009) Isabella Cosenza (until January 2009) Legal Officers Anna Dziedzic (from March 2009) Lisa Eckstein Althea Gibson (until January 2009) Erin Mackay (until January 2009) Consultant Amie Grierson (March 2009) Research Manager Jonathan Dobinson Librarian Carolyn Kearney Project Assistant Tina O’Brien 8 Secrecy Laws and Open Government in Australia Legal Interns Michael Evry Stephanie Fusco Kelvin Liew Isley Markman Katherine McGree Larisa Michalko Tracy Nau Naomi Oreb Christina Ray Michelle Salomon Vasudha Sathanapally Katie Schafer Smriti Sriram Yi-Shun Teoh Michael Wells Rebecca Zaman Advisory Committee Members Ms Lynelle Briggs, Australian Public Service Commissioner (until